Nottinghamshire Healthcare National Health Service Trust v New Group Newspapers Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Pumfrey |
| Judgment Date | 14 March 2002 |
| Neutral Citation | [2002] EWHC 409 (Ch) |
| Docket Number | Case No: 0005371 |
| Court | Chancery Division |
| Date | 14 March 2002 |
[2002] EWHC 409 (Ch)
The Honourable Mr Justice Pumfrey
Case No: 0005371
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
James Clifford (instructed by Charles Russell) for the Claimant
Richard Spearman QC (instructed by Farrers) for the Defendant
Hearing dates: 4, 5, 8 February 2002
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Pumfrey J
Mr Justice Pumfrey
Introduction
This action is concerned with the use by the defendants in the Sun of a photograph of a patient at Rampton Hospital called Laith Alani. Mr Alani has been a patient at the hospital since 1992, after his conviction in respect of the killing of two consultant plastic surgeons. The photograph in question was a photograph taken at Rampton hospital and formed part of Mr Alani's medical notes. It was published in the Sun in circumstances which I shall describe without the consent either of Mr Alani or of the hospital.
The claimant, which is the successor to the Rampton Hospital Authority, the original claimant, is (it is common ground) entitled to the copyright which subsists in the photograph. Accordingly it sues the Sun for copyright infringement, seeking injunctive relief and an award of damages for infringement. It also seeks an award of additional damages under section 97 of the Copyright, Designs and Patents Act 1988 ('the CDPA') and it contends that having regard to the flagrancy of the infringement, and the circumstances surrounding it, the sum awarded by way of additional damages can and should include a substantial punitive, or exemplary element. Thus this action raises directly the nature of an award of additional damages in copyright actions, and the circumstances in which such an award should be made.
The Sun's reporting of Rampton in general and Mr Alani in particular
Mr Martyn Sharpe is the Sun's district reporter with responsibility for Yorkshire, Nottinghamshire, Derbyshire and North Lincolnshire. I shall refer to him as 'Martyn Sharpe' to distinguish him from Chris Sharpe, the Head of Security at Rampton, who also gave evidence. He has worked for the Sun for twenty-six years. Rampton falls inside Mr Martyn Sharpe's area, and he has written a number of stories about the hospital in recent years. He told me that he had a number of sources of information in the hospital, but unsurprisingly he was unwilling to reveal their names and no application was made to compel him to do so. However, certain material disclosed by Martyn Sharpe has enabled the hospital authorities to identify at least one of Martyn Sharpe's sources, and this nurse was dismissed. He has been writing stories about Rampton for six years or seven years, and I infer that he has had an informant or informants at the hospital during that time. He received the photograph.
It is unfortunate that the photograph has been removed from the Sun's database of pictures but his evidence in relation to it is very clear. He says that he received it as an A4 photocopy of a photograph, in an envelope addressed to him personally at the Sun's Manchester office. There was, he says, no material identifying either the subject or the source. He says that he recognised the subject as Laith Alani. He took it to Mr Phil Callaghan, a photographer with whom he often worked, and he says he asked Mr Callaghan to photograph it and transmit the photograph to the Sun in London with an instruction that it should not be published but be used for reference purposes only.
Martyn Sharpe is in the habit of paying his sources. He says that he did not pay anyone for this photograph. There is no doubt that the photograph is a copy of one of the hospital's file photographs of Mr Alani dating from August 1998, but it was not the most recent of those photographs at the time it was sent to Mr Sharpe, a more recent photograph having been taken in July 1999. Photographs of patients are taken on their admission and from time to time thereafter by hospital employees and stored on a computer. A number of A4 prints of the most recent photographs are made: two copies are kept in the security control room to help in identification in the event that a patient absconds from the hospital. A further copy is kept on the patient's ward. One of the control room copies accompanies patients when they make supervised visits outside the hospital. Out-of-date copy photographs have in the past been kept on the patient's ward with the medical notes, but this practice is no longer followed. The hypothesis presented by the hospital is that the photograph is an out-of-date photograph removed from the medical records, and that there is a good chance that the person who took the photograph is the person who supplied other material to Mr Sharpe and was dismissed. This seems plausible.
Mr Sharpe says that he recognised the photograph as being a photograph of Mr Alani. I must say that this would be a great credit to Mr Sharpe's memory. Mr Alani has appeared in public briefly at the time of his trial in late 1991, when he was bearded. The hospital photograph is a head-and-shoulders face-on portrait in harsh lighting of a man with a moustache who is otherwise clean shaven. The two file photographs which I was shown of him dating from the trial look to my eyes nothing like the hospital photograph, and, as Mr Sharpe says, he handles many stories each week for the Sun. When Mr Sharpe received the photograph there was no Alani story. He had been a patient at the hospital for seven years, and there was no reason to suppose that the photograph could ever find any use, even for reference.
I think that it was perfectly obvious to Mr Sharpe where this photograph had come from. He suggested that it might have come from one of the patients, but absent any clear evidence that this had happened in the past I would discount this suggestion. It was perfectly obvious that this was Rampton information. I am also inclined to think that Mr Sharpe knew it was coming. I have great difficulty with his evidence that he recognised Mr Alani. Mr Alani was an old story. He had been bearded at the time of his trial, which seems not to have lasted long. Mr Sharpe handles many stories in a week. He has a particular interest in Rampton because as he put it his sources had 'valid arguments about the liberal régime' and he thought the public were entitled to know about this. I think he told me he agreed with those views. So he had a particular interest and I think that he knew about the photograph and the name of the patient because he was told.
At some point before 8 June 1999, Mr Sharpe was informed by his source, or sources, within the hospital that Mr Alani was to make an escorted rehabilitation visit to Worksop. Such visits are likely to be part of the patient's plan of treatment, although visits may be made for other purposes, such as medical treatment outside the hospital, attendance at funerals and the like. The treatment plans are made and modified throughout the patient's stay at the hospital, and once a year (at least) consideration will be given to the question of rehabilitation trips. Such trips require a great deal of planning. If the patient is a restricted patient (as Mr Alani is) Home Office approval has to be obtained. A risk assessment is carried out by the hospital and a plan for managing the risks is made. The place and the duration of the visit, and the components of the visit, are planned in advance. Mr Alani's trip was a shopping trip. Such a trip will be accompanied by purchase of refreshments in a café or fast food outlet, so as to give the patient some experience of the world outside Rampton.
Having been provided with advanced notice of Mr Alani's escorted visit, Mr Sharpe arranged for the presence of two photographers (Mr Callaghan and Mr Tattersall, the latter now the Associate Picture Editor of the Sun) in different cars in Worksop. Mr Tattersall and Mr Sharpe stayed together, while Mr Callaghan stayed in contact with them by mobile telephone. Rampton use people carriers for these trips, and when a people carrier with a driver and three other occupants, including Mr Alani arrived, it is the evidence of Mr Sharpe and Mr Tattersall that they recognised Mr Alani. Under cross-examination, Mr Tattersall said that he was an Asian chap (Mr Alani is Middle Eastern) and that spotting him was not a concern. Mr Alani had two escorts who did not leave him. Mr Alani visited a supermarket and then a McDonald's, Mr Tattersall taking many photographs using a long lens. Mr Tattersall had taken similar photographs of patients from Rampton in the past. He mentions rehabilitation visits made by Carol Barrett, whom he describes as a 'convicted child killer' and Beverley Allitt.
Photographs taken on these occasions accompanied stories in the Sun. Photographs taken by Mr Tattersall were used to illustrate Mr Sharpe's story in the Sun on this occasion also. Under the headline 'DOUBLE KILLER POPS OUT FOR A MCDONALD'S—Outrage over jaunt for psycho" it contains the passage
'Nobody gave the 33-year-old Rampton inmate a second glance as he toured a supermarket and had a doughnut and coffee at McDonald's in nearby Worksop, Notts.
But after his taste of freedom was revealed last night, the outing was blasted by the victims' widows and shocked shop staff.
Disgusting
McDonald's floor manager Tracey Metcalfe said: "It's disgusting. People like him shouldn't be out having a good time."….'
This story appeared on 10 June 1999. At some time Mr Alani read it in Rampton. No doubt because Ms Metcalfe's name had...
To continue reading
Request your trial
-
Flogas Britain Ltd v Calor Gas Ltd
...of "couldn't care less" was sufficient to aggravate infringement: Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002] R.P.C. 49 at [52]. In addition, there is no need for knowledge on the part of a defendant that what is alleged to amount to infringement is indeed an inf......
-
Reformation Publishing Company Ltd v Cruiseco Ltd
...of scandalous conduct, deceit and such like; it includes deliberate and calculated copyright infringements.” In Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002] EWHC 409 (Ch), Pumfrey J considered s. 97(2) at some length. For present purposes the most relevant passag......
-
Phonographic Performance Ltd v Andrew Ellis Trading as Bla Bla Bar
...which are similar to those of exemplary or aggravated damages.” 29 In Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002] EWHC 409 (Ch), [2002] RPC 49 Pumfrey J returned to the question. Having considered the authorities Pumfrey J held at [51]: “There is no reason why a......
-
Jodie Aysha Henderson v All Around the World Recordings Ltd
...a "couldn't care less" attitude on the part of All Around the World, the criterion favoured by Pumfrey J in Nottinghamshire Healthcare NHS Trust v News Group Newspapers Ltd [2002] RPC 49, at paragraph 52. In the Nottinghamshire Healthcare case Pumfrey J observed that the equivalent provisio......